Section 47 of the National Assistance Act 1948 (which gives a local authority power to remove a person in need of care from home) ceases to apply to persons in England.
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Section 47 of the National Assistance Act 1948 (which gives a local authority power to remove a person in need of care from home) ceases to apply to persons in England.
S47 of the NAA48 is rarely used, however, there is a need for legislation to remove a person from their home in situations where other acts do not apply (e.g. Mental Health act, Mental Capacity Act). I have come across situations where service users are living in conditions hazardous to their health and endangering the health and safety of others. When the level of squalor has reached such a stage that there is real danger of infestation of vermin and insects, we need legislation that allows the authorities to protect individuals. If not the 1948 act what other legislation is available to us?
I agree completely John, great consideration should be given not to removing the power under s.47, which as you say, is very rarely used and provides a safety net for practitioners where the MHA and MCA is not suitable and the police are unable to assist with the vulnerable adult in cases where there is no crime.
I agree John, I also have come across more than one case where there was insufficient grounds to go ahead with a full MHA and where the MCA had failed to offer the right balance of legislative support.
The MHA was never intended to be used as a method to remove people from homes considered unfit, and the spirit of the MCA heavily advocates for the right to make ‘unwise’ (such as speculative living standards) decisions. So I feel for those that think this is where the NAA is replaced, they need to reconsider familiarising themselves with this legislation.
To those who feel this is the role of environmental health… Any self respecting social worker will have of course involved environmental services at the earliest opportunity, however, their power does not allow for the removal of and then replacement of people and I was advised that the couple would, if left to environmental health, find themselves permanently re-housed and their tenancy for a property where they had lived for many years, ended… in addition to this they would then be hit with the full cost of this action and the subsequent clean up. How’s that for human rights?
As to those that think this is a matter of poor risk assessment etc; generally, we become involved in situation like this when they have hit a crisis point. Clearly I would hope, if use of the NAA is being considered, all other avenues have been explored. I tend to think of S47 of the NAA as the social care equivalent of nuclear armament – it’s the last resort, many dislike it, all agree it would be a devastating thing to witness, but those who live in the real world take some amount of security in the knowledge that it’s there.
In 2 of my cases use of the NAA was considered and went as far as identifying ‘proper officers’. Full multi disciplinary meetings including heads of service, legal, mental health (health & social care) housing organisations and of course environmental health were in attendance. For those sceptics of this process, my plan was to use this to get access to the property, deep clean it, re-carpet and then replace the couple – whilst they spent a week in respite. By including the couple in this process, when the deadline came, they consented to the plan and were returned home in just over a week. Whilst this was a traumatic experience, both were delighted with the outcome.
There should be a note on this clause to explain why the provision is no longer needed. Possibly, the reason is that powers in the Mental Health or Mental Capacity Acts are thought to be sufficient, and perhaps they are indeed sufficient in the circumstances described above, but that should be made clear somehow.
Not so….
There should never be an automatic right of removal of people living in conditions a social worker judges ‘unfit’. There is environmental health legislation. Environmental health professionals must be the ones to decide if conditions are actually endangering health / safety and the courses of action that can be taken- lawfully.
There are very many persons who are not service users living in conditions where the same kinds of ‘hazards’ exist and it would be ridiculous to siggest all can be removed from their home. Environmental health can take enforcement action where public health is found to be an issue. Personal hygiene and health are an individual personal matter in society on which others can only make judgement not make laws to control. Care packages too are often inadequate to cover properly health and hygiene needs.
It must never be such that social workers unilaterally seek removal of persons from their homes based on THEIR OWN JUDGEMENTS. People have a right to live how and where they choose unless they can be proven to be causing a public health problem for others.
The role of a social worker is to help the person to ‘clean up’ by encouraging this through the relationship with the service user- otherwise why have social workers at all?
There is no need for specific legislation. Environmental Health Officers have powers to take action necessary under the Public Health legislation, if someone is living in conditions which endanger public health. They are the professionals to inspect and make this decision and have the ability to enforce ‘clean up’ actions.
It would be morally wrong to apply legislation specifically aimed at social service users which does not apply to other members of the public in their own home.
Also, unless a clinician reports that the service user’s medical health has clearly and objectively been negatively affected by the conditions he/ she is residing in it would be morally wrong for individual social workers to make what might be an effectively personal subjective judgement.
To remove people from the home they are familiar with, unless it is deemed a public / health issue by a relevant professional can itself have very serious negative consequences for a service user. If a social worker has built up a good relationship with the user then it should be possible to help that person so that his /her living condition does not escalate to enforcement action being needed.
“It would be morally wrong to apply legislation specifically aimed at social service users which does not apply to other members of the public in their own home.”
it isn’t aimed at ‘social service users’ it just happens that by definition, someone living in such conditions where there is deemed to be a risk to those or others health and safety, would not only be a potential ‘crisis’ but would also fall under the classifications of a ‘vulnerable adult’.
The true risk of the NAA is it’s potential use by those ill equipped in skills and experience to consider using it. If we’re honest, thats the problem with any legislation.
While s47 is not used very often, we need to have some provision where the actions of someone who has care or support needs places other people at risk, e.g. someone with mental health needs who threatens to or starts fires while living in a block of flats and placing the other residents at risk. In cases of self-neglect leading to unsanitary conditions, the public health powers only enable the cleaning up of the premises but the risk of further problems remains. How do we respond to this type of situation?
I believe that there should be a new power of entry, which does not conflict with the Human Rights Act 1998, which enables agents of the Local Authority to speak to someone with mental capacity if there is a reasonable possibility that they are at risk of abuse or neglect, or self neglect.
I am not aware of any agent of the local authority who wants to invade peoples private, personal space, unless there is a significant concern and justification for doing so. We all want to be defendable in our practice, and I don’t mean defensible practice.
Furthermore, agents of the local authority who respond to safeguarding situations of this nature, often in times of crisis when quick decisions need to be made, require clear, concise, guidance on their response and actions. Why complicate the matter further by not providing a sufficient framework for them to respond?
There is to much ‘overlapping’ of legislation and guidance which often results in such agents being unsure what legislation to apply for fear of repercussions. This is why I welcome the Draft Care and Support Bill. But more clarification, particularly in relation to the issues raised in this consultation need to be clarified.
The Social Care Institute for Excellence’s report in 2011 highlighted that some local authorities had not implemented s.47 NAA 1948, and was unable to find any instance when it had been applied (in their sample), despite being criticised by Coroners for not using it. Please be under no illusion that the reason that it is not applied is not because it is not needed, or because no situation arises whereby a social worker requires its application, its reason is more likely because it conflicts so significantly with the Human Rights Act 1998. A fact which the Department of Health itself identified in its circular in August 2000. It is not necessary to cause such ‘dilemmas’ at a time when all your attention should be on determining level of risk and wellbeing of service users. Make it clear, support practitioners in practice and promote service users well being.
Going into territory where people who have mental capacity, not just those lacking mental capacity, as propounded seems to be about social workers not being robust enough in terms of evidence /assessment as to risk.
Social workers are NEVER expected to defend their practises publicly to the public their paymasters because the social services system lacks any accountability for wrongdoings- Hiiilingdon SS / Neary case, still showning up with ongoing issues, which seems to be about power and control highlights this rather well.
The socio-legal researcher Lucy Series has written a very interesting piece:
http://thesmallplaces.blogspot.co.uk/2012/09/the-problem-of-domination-in-social-care.html.
What social workers seem to pursue is validity of the ‘state’, in terms of their roles, to actually dominate (and so abuse) people without those individuals requesting or desiring input or anyone with direct knowledge (GP, district nurse, etc) suggesting a serious risk of some kind.
There is already a movement with child protection action concerns, which is set to get serious in the not too distant future. It would be well for the state workers / payees to understand their jobs and roles cannot come at the expense of society as a whole.
The government should recognise the problems they are setting in train – assuming they are acting in the best interests of the British Public at large, if they legislate in the way suggested here.
Why do social workers deprive capacitated persons their rights to not be ‘protected’ unless serious risk means danger to others (with evidence from anyone who actually knows the individual’s situation) which is not covered in existing / environmental health legislation?
“believe that there should be a new power of entry, which does not conflict with the Human Rights Act 1998, which enables agents of the Local Authority to speak to someone with mental capacity if there is a reasonable possibility that they are at risk of abuse or neglect, or self neglect”
And pray how will the agents of the state actually manage this without contravention of the European Human Rights Act? What is being suggested here is those who have mental capacity should be policed by social workers and be controlled by them, whether they like it or not. Has there been a public consultation to ask how many adults would accept such a situation for themselves?
It is rather telling that the moderators took down my last post referencing the socio-legal researcher Lucy Series on control/coercion by social care staff; who is well respected in the legal fraternity on the issue of human rights/ mental capacity issues.
I assume social workers will break down doors if someone refuses entry to the premises? Basically that is what is being requested by social workers seeking powers here. The police have such powers, if needed, where there are genuine concerns expressed by others about someone. Unlike social workers they can investigate and ask questions of others before taking this action as it might not be needed.
There are issues around costs of damage to properties in which the vulnerable live as owned / privately rented which they would have to bear for no robust reason where they have not sought help of social services or anyone else known to them has raised an alert.
Without serious concerns being raised by professionals like GP’s, district nurses and neighbours there is no reason for another legislation to give powers of entry.
I agree that parts of s47 are in breach of Human Rights – but not the idea of removing a person, in extreme situations, in and of itself. If one looks at article 8, it is clear that it only accords a right of respect to a person’s private life and home, and autonomy there, and gives way to others’ rights and freedoms, and the protection of health. If one looks at article 5, the right to liberty (because we should be under no illusion, s47 provides a right to actually detain a person) we see that it is expressly qualified under the European Convention with regard to for the prevention of the spreading of infectious diseases, persons of unsound mind, alcoholics or drug addicts or vagrants; and s47 is mainly used in those situations, AND met the requirement of legal process, because one always needed a magistrate’s agreement – not just the say so of a social worker.
However, the fact that one could be left in detention for 6 weeks before being able to challenge the legality of one’s detention, under s47, is what made this provision in clear breach of human rights. My objection to it being left to environmental health officers, is that they famously believe in negotiation and agreements with people, and this is impossible and a disingenuous approach to take with people suffering from compulsive behaviour disorders such as hoarding. What follows a removal, in terms of what happens to a person’s things, or animals, and whether they can ever go back, is very sophisticated social work, in my view; absolutely for highly qualified social workers, maybe in conjunction with environmental health officers, for the first bit, though. Now public health functions are coming over to councils, this is the moment to put s47 right, not do away with it altogether, in my view.
All though hoarding is disapproved of by professionals and social workers to the degree they start to interfere in private lives of individuals, it is very common indeed as a phenomenon. It covers a spectrum of behaviours – from being a ‘collector’ to literally collecting others rubbish to an extreme degree.
The general argument is that hoarding is unsafe e.g. for the elderly because it is a fire risk. But some care homes have caught fire and fires occur for reasons other than hoarding e.g electrical faults / smoking etc- so this would be a subjective judgement on which to remove someone from their home.
Hoarding is also deemed to encourage vermin- ony if the hoarded material itself is of interest and the home has entry points for vermin to get inside. Any property in say a city like London has the possibility of vermin infestation as this is common even in clean / empty homes- I have seen many restaurants with mouse traps for example around.
There are no need for draconian powers to remove people who do not want to leave their home unless there is a proven issue of danger to self and others.
As you rightly point out, fires can indeed happen for many reasons, as can a whole host of unpleasant events, but that is no reason to not act!
A social worker’s role is to assess the risks posed by a person’s behaviour and act in an anti-oppressive manner to safeguard the person and those around them. Unwise decisions are allowed to be made but issues of health and safety, in all that term entails, have to be at the forefront of peoples’ minds and when they are not a social worker is likely to end up becoming involved for the good of all concerned.
I think if you understood the role of social services better and put aside untrue and inaccurate ‘media?’ perceptions you may find the causes for most problems are not created by those who wish to play a part in solving them.
Unfortunately I have rather too much knowledge of the role of social services to wish the local authority and its employees more ability to misuse its powers and interfere in the lives of citizens in the belief they are ‘saving’ anyone. Their job is to assess for and provide services.
Your comment suggests that you have knowledge of the relevant matters matters from a relatively rather short working life in social services.
Some of us have rather long memories and know that ‘risk’ is a subjective phenomena in a world full of daily risks, There will extremely rarely be a need to enter and remove people from their homes, without their consent.
Having worked for over 30 years in this profession I can only recall 3 occasions when I have had to consider S47. As I said in my original comment S47 is rarely used. It is always the case that intervention should always take the least invasive and least restrictive form. That is why S47 is so rarely used. Social workers are often referred to as “agents of social control”, however, I see my role as enabling individuals to take full control of their lives and remain free of state intervention. There are, however, limits to freedom. We reach those limits when we lack the capacity to make informed decisions, where our mental state is seriously compromised or where we endanger others. At these times the public expect the state to intervene for the benefit of the individual and the public. If the social worker is given the responsibility of assessing Mental Capacity, Mental Health and Best Interest then their assessment and subsequent actions need to be based upon sound legislation.
Social workers are very accountable for their actions and omissions. They often have duties that are not backed up by judicial powers. They are also subject to complaints procedures both within their departments and through their professional bodies. Decisions can be challenged within the courts and as we have seen these challenges can go to the Supreme Court and the European Court of Human Rights. Under this level of scrutiny social workers consider their actions very carefully. Not to do so is foolhardy.
Taking the decision to implement the safeguards under S47 is not reached easily. It is a slow process and involves many professions. Consultation with the service user, their family, GP, Psychiatrist, Environmental Health, Housing and even the police take place before any action is implemented. The situation has to be extreme for the section to be finally implemented and even then, where ever possible, the individual will be enabled to return home at the earliest possibility.
S47 is a tool; if the public want social workers to do a good job they need the right tools. If not S47 then we need it to be replaced by a well considered and robust alternative.
I reall do not want to ‘hog the debates’ on these sites, but to impart the wider perspective that social workers lack.
It is evident from court cases that misuse of tools and poor skills / attitudes are not uncommon in social work. Having a tool which is exceptionally rarely needed but contravenes Human Rights is not acceptable in modern times.
Also the whole point of good social work is the ability of the skills of the worker to forge a good and trusting relationship to encourage the change required- i.e. a short spell away from the home to make it safe. As a judge in the CoP case recently stated in in connection with mental capacity assessment / wishes of P, one cannot underestimate the connection / attachment to ones own home/ residence in older age.
Would it not be possible to add the words “other than for environmental health reasons” at the end of this clause?
I have worked directly with many people who have extremely problematic relationships with alcohol and other illicit substances and whilst they may not always have diagnosed mental health problems and may not lack capacity, their ability to care for and about themselves while in drink or drugs can be non existent and put them and others in highly risky situations. Drug and alcohol detoxification is often not an option. As the MHA and the MCA do not always apply here, would social workers be able to carry out their safeguarding role without the back up of S47, ensuring that vulnerable adults do not die in their own homes? Should a social worker’s responsibility to safeguard ever supercede an individual’s rights to make certain choices?
We do not understand why this is being repealed as there are no explanatory notes. Where are the provisions elsewhere for this power and will they distinguish between adults with/without capacity? Surely there are still circumstances where such a provision may be necessary?
We can only agree with Belinda Schwehr on this.
I do believe that a wide perspective of views is sort on cases involving S47. Social workers are not autonomous. In every case I know of consultations are held with a wide range of professions. In each case the relevant LA solicitor was involved as was housing welfare, environmental health, GP, Consultant Psychiatrist, family and the client and their advocates.
As a social worker I also have many different perspectives to draw upon. I have been a health care professional both in this country and in China; I have life experience which includes being a dock worker, steel worker and shop worker. I’m a father, a husband and a member of the wider community. I say this to show that social workers can not be pigeon holed and categorised as some homogeneous group.
Yes poor decisions are made and they are well publicised. However, many millions of decisions are taken each day by dedicated, conscientious social workers who help to protect the rights of individuals they work with as well as the general populous, these are not so well publicised.
The HRA allows for the state to remove people from their homes and deprive them of some of their rights where it is prescribed by law. The Mental Health Act and Mental Capacity act are two examples. What are important are the safeguards and provisions that are applied to the legislation. S47 is no more draconian than any other piece of legislation. It is rarely used because it is so well policed by those who have the duty to act in accordance with it. There comes a time, rarely, where the need to protect vulnerable adults has to take president over personal choice. S47 has a clear value to both the individual and the community. Revise it by all means but do not throw the baby out with the bath water.